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Workers’ Compensation Retaliation

Are you worried that your employer will retaliate against you for filing a workers’ compensation claim, perhaps through a demotion or termination? In most states, it is illegal for employers to punish workers who file workers’ compensation claims. So if you believe that you have been the victim of workers’ compensation retaliation, it is important that you understand your rights and know how to lawfully proceed.

Workers’ Compensation Retaliation

What Is Workers’ Compensation Retaliation?

Retaliation occurs when an employer takes an adverse job action against an employee for exercising a protected right, including filing a workers’ compensation claim. Employers may choose to retaliate against employees who file workers’ compensation claims because they want to reduce their costs. Retaliatory actions may take multiple forms, including the following:

Discipline

Demotion

Denial of bonus

Salary reduction

Shift reassignment

Termination

When these adverse job actions are taken because a worker filed a workers’ compensation claim, the worker may have grounds to file a legal claim against the employer.

How to Prove a Workers’ Compensation Retaliation Claim

A worker may have a valid retaliation claim even if the underlying workers’ compensation claim (upon which the retaliatory action was based) was denied. In order to prove that the employer engaged in prohibited retaliation, the plaintiff will need to prove several elements.

First, you will need to show that you are/were a worker entitled to receive workers’ compensation benefits under the law. To meet this element, you must be (or have been) a statutory employee and not an independent contractor, and your employer must either carry workers’ compensation insurance or be self-insured.

Next, you will need to prove that you engaged in a legally protected activity. This may include filling out and submitting the workers’ compensation forms to your employer. In some states, legally protected activities are defined more broadly and may also include telling your employer that you intend to file a workers’ compensation claim or simply suffering a compensable injury while on the job. In order to make certain that your activity is protected, it is best to go ahead and immediately report your injury and to turn in the necessary forms for your claim.

You will then need to show that your employer engaged in an adverse job action against you. This may include termination or any other negative change to the terms of your job or your assignment.

The final element that you will need to prove in order to prevail on a retaliation claim is causation. You will need to prove that your protected activity was the cause of the negative action that was taken against you. This may be the most difficult element to prove in a retaliation case. You may present evidence showing that you had consistently good performance reviews prior to your injury and workers’ compensation claim, only to receive negative reviews following it. You may also present evidence that the action followed the filing of your claim closely in time. If your employer fired you for a claimed reason for which other employees have not been terminated, you can show evidence that your firing was a deviation from the normal practice of the business. Presenting evidence that your supervisor expressed anger about your claim may also help, as it can indicate that the negative job action was retaliatory in nature.

Your employer may defend against the retaliation claim. Oftentimes employers in this situation will present evidence that the employee was fired (or experienced another adverse job action) for reasons other than the filing of a workers’ compensation claim. They may present poor performance reviews, past write-ups, attendance records, and other evidence that indicates that they had valid reasons for terminating the employee.

Potential Damages in a Retaliation Case

Workers who are injured at work can file for workers’ compensation benefits but are not able to file lawsuits against their employers. However, if the employers engage in retaliation against them for filing claims, the workers can file retaliation lawsuits against their employers in order to recover damages. There are two primary types of damages that workers might recover. Compensatory damages are designed to compensate you for the losses that you suffered because of the retaliation, including lost wages and lost benefits. If your employer acted with actual malice and you are able to prove it, you may also be able to ask for punitive damages that are designed to punish your employer for violating the law.

Contact an Experienced Attorney

If you believe that your employer retaliated against you because you filed a workers’ compensation claim, contact the Law Offices of Bryan Musgrave today for a free consultation. Our knowledgeable and experienced team can help you pursue the compensation you deserve. To get started, please give us a call at 417-322-2222 or contact us online to schedule your free consultation.